## United States Court of Appeals for the Federal Circuit

2008-3088

VICTOR W. WELSHANS, Petitioner,

v. UNITED STATES POSTAL SERVICE, Respondent.

Ariel E. Solomon , Tully Rinckey P.L.L.C., of Albany, New York, argued for petitioner. On the brie f was Greg T. Rinckey

. Tara J. Kilfoyle , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. With her on the brief were Gregory G. Katsas , Acting Assistant Attorney General, Jeanne E. Davidson , Director, and Franklin E. White, Jr. , Assistant Director. Appealed from: Merit S ystems Protection Board

### UNITED STATES COURT OF APPEAL S FOR THE FEDERAL CIRCUIT

2008-3088

VICTOR W. WELSHANS, Petitioner,

v. UNITED STATES POSTAL SERVICE, Respondent.

Petition for review of the Merit Syst ems Protection Board in PH3443060353-I-1.

______________________ DECIDED: December 15, 2008

_______________________

Before MAYER, SCHALL, and MOORE, Circuit Judges

. MAYER, Circuit Judge

. Victor W. Welshans appeals the final decision of the Merit Systems Protection Board that dismissed his appeal seeking corrective acti on under the Uniformed Services Employment and Reemploym ent Rights Act of 1994 (“U SERRA”), 38 U.S.C. §§ 4301- 4333. See Welshans v. U.S. Postal Serv. , 107 M.S.P.R. 110 (M. S.P.B. 2007). We affirm

.I. Background Welshans has been employed by the United States Post al Service since 1981. From August 1983 until August 2 004, he also served as a reservist in the United States Army. In 2006, Welshans filed an appeal with the b oard, alleging that the Postal Service had improperly charged him for military leave. He asserted that he should not have been charged leave for days, such as Sund ays and holidays, which fell within a period of absence for military training, but whic h were not his scheduled Postal Service workdays. In an initial decision, dat ed December 19, 2006, an ad ministrative judge found that the Postal Service had acted in violation of its Employee an d Labor Relations Manual (“ELM”) when it charged Welshans for military leave on A ugust 21 and August 23, 1999. On appeal, however, the board re versed. The board determined that the administrative judge had improp erly applied the 2002 version of the ELM, rather than the ELM in effect in 1999. Because the board conc luded that the ELM in effect in 1999 unambiguously required that the Postal Service charge non-workdays falling within a period of absence for active duty against milit ary leave, it dismissed Welshans’ appeal for failure to state a claim upon which relief could be granted. Welshans then timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). II. Discussion Our review of a decision of the board is ci rcumscribed by statute. We must affirm the decision unless we find it to be: “(1) arbitr ary, capricious, an abuse of discretion, or

2008-3088 2otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c) ; Lizzio v. Dep’t of Army , 534 F.3d 1376, 1381-82 (Fed. Cir. 2008); Hernandez v. Dep’t of Air Force , 498 F.3d 1328, 1330 (Fed. Cir. 2007). The interpretation of a statute or regulation is a question of law that we review de novo . See Lengerich v. Dep’t of Interior , 454 F.3d 1367, 1370 (Fed. Cir. 2006). Welshans argues that the Po stal Service should not have charged him military leave for days on which he was away from his workplace on reserve duty, but which were not his scheduled workdays at the Postal Service. He advances three arguments. First, he contends that charging him leave for non-workdays is contrary to this court’s decision in Butterbaugh v. Department of Justice , 336 F.3d 1332 (Fed. Cir. 2003). Second, he asserts that Postal Service r egulations, contained in the ELM, prohibit charging an employee military leave for non-workdays. Finally, he argues that charging leave for non-workdays constitutes a facial vi olation of USERRA, 38 U.S.C. §§ 4301-33. A. Butterbaugh Under 5 U.S.C. § 6323(a)(1), certain em ployees of the federal government are granted “15 days per fiscal year” of military leave. * In Butterbaugh , this court concluded

* In relevant part, 5 U.S.C. § 6323 provides: [A]n employee as defined by section 21 05 of this title . . . is entitled to leave without loss in pay, time, or performance or efficiency rating for active duty, inactive-duty training . . . funeral honors duty . . . or engaging in field or coast defense training . . . as a Reserve of the armed forces or member of the National Guard. Leave under this subsection accrues for an employee or individual at the rate of 15 days per fiscal year and, to the extent that it is not used in a fiscal year, accumulates for use in the succeeding fiscal year until it totals 15 days at the begi nning of a fiscal year.

2008-3088 3that the word “days” in section 6323 should be construed to mean workdays rather than calendar days. 336 F.3d at 13 36-42. Our decision was prem ised on the fact that the Office of Personnel Management had determined that the term “days” meant workdays in 5 U.S.C. § 6326, a “c losely related” federal leave statute. Id. at 1338-39 (citing 5 C.F.R. § 630.804). Administrative agencies are expected to “construe the same term in closely related statutes consistently,” and since the term “days” had been construed to mean workdays in section 6326, we concluded that it should be construed to mean workdays in section 6323 as well. Id. Because we determined that section 6323 grants employees fifteen workdays, rather than fifteen calendar days, of m ilitary leave, we held that the Department of Justic e was prohibited from charging non-workdays against its employees’ military leave. Id. at 1337-42. Butterbaugh , however, affords Welshans no re medy. The only issue addressed there was “the correct interpretation of 5 U.S.C. § 6323(a)(1).” Butterbaugh , 336 F.3d at 1336. By statute, the Postal Service is specifically ex cluded from the application of section 6323. See 5 U.S.C. § 2105(e) (“E xcept as otherwise prov ided by law, an employee of the United States Postal Service . . . is deemed not an employee for purposes of this title.”); Ni gg v. Merit Sys. Prot. Bd. , 321 F.3d 1381, 1384 (Fed. Cir. 2003) (“The provisions of Title 5 do not apply to the Postal Service unless Congress has specifically so provided.”); Baca shihua v. Merit Sys. Prot. Bd. , 811 F.2d 1498, 1501 (Fed. Cir. 1987) (“[T]he Postal Service [i s] an independent establishment of the executive branch with very lim ited application of federal em ployee law.”). Because section 6323 is inapplicable to Postal Service employees, nothing in Butterbaugh

2008-3088 4prohibits the Postal Service from charging non-workdays against its employees’ military leave. B. The Employee and Labor Relations Manual Although section 6323 does not apply to the Postal Service, agency employees are entitled to military leave und er the provisions of the ELM. Under current regulations, the agency does not charge non-workdays falli ng within a period of military service against an employee’s military leave. See ELM § 517 (effective Sept. 8, 2001). But in 1999, the year in which Welshans’ disputed leave was charged, the ELM provided that: “Nonworkdays falling within a period of absence for active duty are charged against the paid military leave allowed for full-time employees dur ing the fiscal year, but nonworkdays falling at the beginning and end of an active duty period are not charged.” ELM § 517.53. Thus, during the relevant ti me period, the ELM unambiguously required that the Postal Service charge non-workdays falling within a period of absence for military duty against military leave. Notwithstanding the fact that the plain language of the ELM in effect in 1999 required the agency to charge non-workdays agai nst military leave, Welshans contends that the Postal Service intended to provid e its employees with rights “analogous” to those provided to other feder al employees by section 6323. In support, he argues that “[t]he [Postal Service] origin ally implemented a policy that mirrored the [f]ederal law [in 5 U.S.C. § 6323] and then rout inely amended that policy to reflect changes in the prevailing federal law despite th e fact that it was under no st atutory obligation to do so.” In essence, Welshans argues that the Postal Service intended to “impliedly integrate” all section 6323 rights into the ELM.

2008-3088 5Welshans acknowledges, however, that he did not raise this argument—either before the administrative judge or the board. We decline, ther efore, to consider it on appeal. See Rockwell v. Dep’t of Transp. , 789 F.2d 908, 913 (Fed . Cir. 1986) (“Our precedent clearly establishes the impropriety of seeking a reversal of the board’s decision on the basis of assertions never pr esented to the presiding official or to the board.”). Although “ther e are circumstances in which a federal appellate court is justified in resolving an issue not passed on below,” Singleton v. Wulff , 428 U.S. 106, 121 (1976), no such circumstances are present here. It would be manifestly unfair for this court to resolve the question of whet her the Postal Service intended to “impliedly integrate” section 6323 rights into the ELM without giving the government an opportunity to present evidence on the issue. ** See Hormel v. Helvering , 312 U.S. 552, 556 (1941) (An appellate court’s refusal to consider ne w arguments on appeal is “essential in order that parties may have the opportunity to offer all the evidence they believe relevant to the issues . . . [and] in or der that litigants may not be surprised on appeal by final decision there of issues upon which they have had no opportunity to introduce evidence.”). C. USERRA Finally, Welshans contends that charging military leave for non-workdays is, on its face, a violation of USERRA. “USERRA represents Congress’s most recent effort to

** In Myers v. United States Postal Service , No. CH-3443-07-0628-I-1, 2008 MSPB LEXIS 622 (M.S.P.B. J an. 31, 2008), an administr ative judge of the board rejected the contention that t he Postal Service intended to “impliedly integrate” section 6323 rights into the ELM. He noted t hat the Postal Service had “provided uncontradicted evidence that prov es that it did not intend the military leave provisions of the ELM [to] mirror the military leave provisions of [section 6323].” Id. at *6. Myers is currently on appeal to this court.

2008-3088 6create a comprehensive statutory scheme to provide civilian reemployment rights for those who serve in the armed forces in or der ‘to encourage noncareer service in the uniformed services by eliminating or mini mizing the disadvantages to civilian careers and employment which can result from such service.’” Smith v. U.S. Postal Serv. , 540 F.3d 1364, 1366 (Fed. Cir. 2008) (quoting 38 U.S.C. § 4301(a)). It prohibits discrimination against persons serving in the military by mandating t hat a member of “a uniformed service shall not be denied . . . any benefit of employment by an employer on the basis of that membership . . . .” 38 U.S.C. § 4311(a); see Hernandez , 498 F.3d at
1332 n.4. Under USERRA, the board has jurisdiction over a government employee’s claim that he has been denied a “benefit of employment” on the basis of his membership in the uniformed services. See 38 U.S.C. §§ 4311(a), 4324(b). The term “benefit of employment” has been given an “e xpansive interpretation,” see Yates v. Merit Sys. Prot. Bd. , 145 F.3d 1480, 1484-85 (Fed. Cir. 1998), and has been construed to include military leave, Pucilowski v. Dep’t of Justice , 498 F.3d 1341, 1344 (Fed. Cir. 2007). Contrary to Welshans’ assertions, however , the Postal Service’s military leave policy did not deny reservists any benefit of em ployment. Instead, the ELM in effect in 1999 granted reservists an additional benefit not available to non-military employees. While non-reservists were entitled to sick and annual leave, reservists were granted not only sick and annual leave, but military leave as well. Regardless of whether nonworkdays are charged against militar y leave, such leave is a benefit available only to employees serving in the military. USERRA prohibits discrimination against reservists because of their service: there is nothing in the statute to prevent an agency from

2008-3088 72008-3088 8 granting them benefits not available to other employees. See Fahrenbacher v. Dep’t of Navy , 85 M.S.P.R. 500, 510 (M.S.P.B. 2000) , aff’d sub nom. Sheehan v. Dep’t of Navy , 240 F.3d 1009 (Fed. Cir. 2001) (“To establish [USERRA] di scrimination, [veterans] must show that they were treated more harshly than non-veterans. The fact that they were not treated better than non-veterans does not show discrimination.”). III. Conclusion Accordingly, the decision of the Merit Systems Protection Board is affirmed.

AFFIRMED